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A personal injury case is one in which a person has been injured, disabled, maimed, or killed due to someone else’s fault. The law has a special adjective for someone whose carelessness has caused harm to someone else—negligent. Negligence is doing something someone should not have done that harmed someone else or not doing something he or she should have done that caused harm to another.

If such carelessness by someone else causes damage to your car only, that’s called a “property damage” claim. If someone’s negligence causes another person’s death, that’s called “wrongful death.” Each state’s laws differ significantly regarding what can be recovered in a wrongful death case. You need an attorney who understands the specialized wrongful death law in Tennessee.

Negligence takes many forms. If you’ve been hurt by someone else’s fault, you have a personal injury claim. The law gives you special rights (and responsibilities). What are they? Read on.

How Will My Medical Bills Be Paid?

The bills are piling up, and they aren’t tiny amounts. You know before long the bill collectors will start calling. You’ve worked hard to establish good credit, but now, through no fault of your own, you’re in danger of losing what you have worked so hard to get.

What should you do?

First of all, find out all forms of insurance you have available. If you have health care coverage through a provider (Blue Cross, Cigna, and so on), that’s a good start. If your employer provides this coverage, you’ll need to find out if this is an ERISA Plan (Employee Retirement Income Security Act of 1974). An ERISA Plan is more of a loan than an insurance plan. It often has harsh repayment rules you need to be aware of early on in your case. What they don’t tell you is that this area of law, known as reimbursement or subrogation, is very complicated, but a good personal injury attorney will figure out the implications of ERISA in your case.

You also may have a form of government-assisted health care. What you may not be aware of is whether you have medical payments (i.e., MedPay) coverage on your car. People forget what they have on their auto policies. If you were hurt when you were a passenger in someone else’s car, you’d need to find out how much MedPay the driver had.

You may also have uninsured motorists coverage (UM) coverage on your car, or the driver of the car you were in as a passenger might have UM coverage.

Of course, you also have liability coverage available through the insurance company of the driver who hit you.

So who should pay and why? Here’s what I suggest.

Your primary health coverage should pay first. You should give the ER, orthopedic doctors, neurologists, and physical therapists your insurance information first. You might say, “I don’t want my insurance company paying these costs.” I say, “Yes you do.” One of the benefits of using your coverage is that the carrier has most likely already worked a reduction into the charge so you’ll get the benefit of a reduced charge. They’ll be paid back, and they will usually negotiate down the charges that will need to be paid back (unless it’s an ERISA lien). Using your health care coverage will usually not cause your rates to increase. Your claims will be paid, collectors will be off your back, and your credit should remain good. And you’ll get some temporary stress relief that you need anyway while your recover from your injuries. (Note that many chiropractors will not accept health care coverage as their reimbursement rates are unreasonably low.)

If you have MedPay coverage, I suggest you ask your med pay carrier to make no payments to any medical providers. You are going to need that money to reimburse you directly to cover your out-of-pocket expenses, co-pays, prescriptions, heating pads, and so on. If you see a chiropractor and have sufficient MedPay coverage, it can cover these costs while you’re being treated.

Liens. Hospitals can file a formal lien in the court in the county in which you live as well as where the provider is located. They may have a lien posted that you’re unaware of. Don’t ever think you can accept a settlement and run out of town. These liens bind you, and you’ll be found sooner or later.

A knowledgeable attorney will watch out for you in this regard. It can still get tricky, and you have to know where to look to see if a lien exists. The hospitals are not required to send you notice of a lien directly. You can find out by calling the circuit court clerk in the county in which you live and the circuit court clerk in the county where the doctor or hospital is.

Some doctors and chiropractors will treat on liens. This is not a formally filed lien but more of a contract that requires you to pay up the remaining balance at the end of the case. Your attorney will want to review any documents you sign with any medical provider to make sure your balances are covered at the end of your case.

There’s nothing more frustrating than thinking your case is over only to find out you owe a hospital or doctor a large sum of money that should have been paid earlier but that money is gone. Don’t let this happen.

At the end of the case, the liability carrier will hopefully have paid enough money for all your claims, but some carriers make one payment for everything at the very end—no piecemeal payments in the meantime. As I mentioned earlier, they can make partial payments, but they don’t like doing that. They’d rather starve you out and make you weak and willing to beg for scraps so they can save money. They do so because they can. They don’t want to pay anything that they ultimately wouldn’t legally be forced to pay (even if it was the right thing to do). Remember their stated goal: to make more money by giving out less. So before you settle your case, you need to understand that the insurance company is including all costs of medical bills as a part of your settlement. This money will have to be paid back to your health insurance company that paid the benefits. Many people find this out the hard way whenever they settle their claim and later get sued by Cigna for not paying them their medical bills back. Know your total exposure. Don’t let this happen to you.

What Is My Personal Injury Case Worth?

The two main factors in determining the worth of a personal injury case are

liability; and

harms and losses incurred as a result.

Liability is listed first for a reason: if you’re injured in an accident for which you are at fault in Tennessee, you cannot recover any money for your injuries. You might “share” some fault with, say, the other driver (perhaps you both may have been making illegal turns), but if the court decides your share of the blame for the accident exceeds 50 percent, you cannot recover.

Who decides if you are at fault and what percentage of the fault is yours? In most cases, a jury does, not an insurance adjuster. If an adjuster tells you that you bear 10 percent of the fault because you were speeding, don’t accept that as gospel. They are not the boss (although they think they are!).

Never let insurance adjusters give you advice on any aspect of your case. They’re not trying to be fair; they’re trying to save their companies money. Their “decisions” are not final.

What if you are partially at fault for causing the wreck but not more than 50 percent? The answer can get complicated, but it comes down to this: if it’s determined you were 25 percent at fault, for example, you will receive 75% of any judgment rendered.

Damages—Economic and Noneconomic

The second part of a personal injury claim is the harms and losses—called damages—you have sustained. Damages are further subdivided into economic and noneconomic categories.

Economic damages include things that have specific price tags such as medical bills, lost wages, future lost ability to earn a living, mileage charges, out-of-pocket expenses, housecleaning (if you’ve been disabled and need such help), and future medical bills to mention just a few. Economic damages include any reasonable expense you have incurred because of the injury you sustained. Let me emphasize the word reasonable; there’s a whole issue of credibility here that I’ll go into later.

Noneconomic damages are physical and mental harms. This includes the oft- overused term “pain and suffering” (in the past and the future), “permanent injury/scarring,” and “loss of enjoyment of life” (the past and future). These harms include pain, agony, disability, inconvenience, and mental anguish, but because of their subjective nature, it’s hard to put a dollar figure on them. A jury is allowed to award money for these types of harms, but because such injuries vary from case to case, it’s up to the jury to come up with a reasonable figure. This is where a good attorney will make all the difference in the world for you.

Economic damages can be determined by adding up the dollar loss. But because there is no formula for determining noneconomic damages and because there’s no way of knowing if a jury would agree with even a good-faith estimate, there’s no way any lawyer could tell you your case is worth this much or that much money. Treat any lawyer who says they know exactly what your case is worth with suspicion. I have tried the same case twice and received different outcomes. There’s no such formula such as twice or three times the medical bills; each case is treated on its own merits. I’ve handled soft-tissue cases (no broken bones but definite muscle pain) with $50,000 in medicals that might not be worth too much more than that. On the flip side, I’ve handled cases involving blindness worth millions that had under $10,000 in medical bills. You have to focus not only on the harm but also on how that harm will affect the injured person for the remainder of his or her life.

How Quick Settlements Can Be Dangerous

Except in wrongful death cases, you cannot always tell the value of a case early on. What if you have a neck injury that’s causing numbness in your arm and hand? It might take some time, but you might recover fully. On the other hand, the pain could get worse and cause weakness in your arms to the point you have difficulty picking up even a coffee cup. You may end up requiring surgery that will cost $50,000 in the future, and you’ll have to listen to a doctor tell you that you run the small but real chance of dying during surgery. You may have to have hardware permanently installed in your neck and have your neck vertebrae fused. You only get one shot, my friends. You cannot come back five years later and get one penny more. Make sure you are careful now in your evaluation of all relevant factors.

Those two types of claims are worth vastly different sums of money because in one case, you recover fully, but in the other, you might face neck-fusion surgery that could lead to significant permanent impairment. Will an insurance claims adjuster allow you some money for potential future pain and the consequences of surgery? Is that possibility of harm being taken into account when a settlement is offered? What about the probability of post-traumatic arthritis that wouldn’t hit you until five or ten years down the road? What about new technology in the future that might help you?

If you don’t ask yourself and the adjuster certain questions now, it will be too late when the problems arise.

When you do receive your settlement, be very careful what you accept. Especially if the settlement comes quickly. The insurance agency wants to settle for the least amount it can. Remember that. When they do pay out it will be in the form of a structured settlement. Possibly in the future, you will want to take a cash dispersal of your payments. Before you proceed in this option, it would be wise for you to do research on the top rated structured settlement companies to ensure that you are not getting ripped off.